I have some questions regarding my Irish divorce settlement from 1999. The family home was to be sold in 2004. My ex-spouse didn't want to sell in 2004 and I agreed with her that she continue to live there in exchange for a cessation of maintenance. She is now in financial difficulties and is seeking to alter the de facto position. I can supply more details in a follow up message.
I have a solicitor (who is yet to give me advice) but I would like a second opinion.
1. You have to be very careful with an irish divorce settlement. This is because Irish divorce law allows a spouse to come back for a second bite at the cherry if there has been a material alteration in financial circumstances, or a change in their respective financial situations. Here, where your ex spouse is in financial difficulties, it opens the potential for her seeking to get the court to make "more" provision for her from the marital assets, or if you have made a lot of money in the interim, she can make a claim to that. Accordingly, be aware that she has one more opportunity to alter the de facto position. To date the cases in this area, have involved situations where the husband has gotten more money due to some change in his financial circumstances, with the result the wife comes back for "more". However, it applies equally where one spouse is in financial difficulties.
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I am a male UK national who married an EU national in her country of origin in1974. In 1975 we moved to Ireland and had a family of two there.The marriage broke up in the early to mid eighties, but I continued to fully fund the family until we were able to obtain a divorce in 1999. I moved to a non EU country with my new partner in1997. The divorce had to be an Irish one due to the time elapsed since the marriage and the facts that the two children were born in Ireland and the family home was there.100% of the capital, mortgage and running costs of the house were paid out of my income up until the time of the divorce.The divorce settlement called for the family home to be sold in 2004 with my ex-spouse to receive 55% of the proceeds, but with an option for my ex-spouse to buy out my share.Maintenance was at an agreed level with the younger child (then19) still resident in the family home.A life policy was taken out in our joint names with my ex-spouse to receive a lump sum on my death. The purpose of this policy was to provide for my ex-spouse in lieu of maintenance.In 2004 my ex-spouse declined her option to buy out my share of the house but indicated that at all costs she wanted to remain in the family home for some years to come. She had built up a local business based on the house where the considerable floor area in the living room was an advantage and it saved her the cost of hiring other premises.She was "moving on" with her life financially, envisaged meeting a new partner and having the ability to exercise her buy out option at a later stage. Both children were now living away, but had fond memories of the house and keen to still have it available to them. One of them saw a long term future living in the house, either as owner or part owner, through a mechanism of buying out either myself or my ex-spouse.Although I had been keen to get access to my capital, I reached an agreement with my ex-spouse to allow her to continue to live in the house, the length of time to be primarily at her discretion, but with the provision that in the longer term either party could call for the house to be sold. The proceeds of a sale were still to be divided 55 - 45. Maintenance was to be paid for a further year (until March 2005) to provide a transitional buffer, after which they would cease. My ex-spouse was confident that these payments would not be needed because of the progress she had made since the divorce.In hindsight it is clear that it would have been prudent to have had this agreement drawn up as a legal document, but it wasn't, and one of the reasons was my ex-spouse wished to avoid legal costs. The cessation of maintenance payments in 2005 meant that there was no longer an insurable interest in my life and the legal document pertaining to the ending of the Life Insurance policy was signed and witnessed by both parties.My contribution to my ex-spouse's financial position from 2005 to present can be quantified as 45% of the rental income that the property would have fetched on the market. This is in excess of the maintenance payments that would have been paid had they continued at the March 2005 level.In addition to her home based business my ex-spouse obtained paid employment with a local agency.She funded 100% of her own living expenses between 2005 and 2012, commissioned €30,000 of improvements on the property without consulting me, made overseas trips and took out and paid back loans There were no communications between the parties in relation to the Divorce Settlement Terms or the subsequent 2004 Agreement. My ex-spouse did not find a new partner during this period.She contacted me at the end of 2011 to say that she had now run into financial difficulties. Her paid employment had ceased and her home based business was not performing as planned. She wanted to sell the house. I agreed to this and we got to the point of putting the house on the market. She then went to a solicitor and gave him only part of the story (the divorce settlement terms), conveniently forgetting our subsequent agreement or explaining how she is still living in a family home that the divorce setlement directed to be sold in 2004. On her instructions these solicitors have asked for 100% of the sale proceeds "in lieu of future and arrears of maintenance". She said she would not claim against my estate in respect of the cancelled Life Insurance Policy. She appears to be seeking a full and final settlement.
I would like to ask the following questions:-1. Although the 2004 Agreement was not signed, it's existence is 100% supported by the behaviour of both parties since over the period 2005 - 2012, in particular there has never been mention of "arrears of maintenance"until now. Would a Court recognise the de-facto state of affairs between the parties?2. Does the current climate in regard to divorce allow for a "full and final settlement" or can a spouse return to the courts for the rest of her life seeking maintenance reviews every time her financial position worsens?3. Do theXXXXXJudgements in relation to G. vs G. have bearings on our situation and if so what are they? What other Family Law Judgements in the various Courts have relevance?4. If the case can't be settled through legally assisted mediation and agreement, what are the likely outcomes in front of a District Court if :-(a) I as Applicant seek to have the house sold at the current split-of-proceeds ratio and to resolve the question of past and any future maintenance payments, either actual or "in lieu".(b) My ex-spouse seeks to have the house sold on the basis that she retains 100% of the proceeds and I become The Respondent.5. What is your advice on how to proceed?
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I have to leave my computer now and will look at your answer later.
I was hoping to receive your answer to my question(s). If this is going to take further time, could you advise please.
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